The Nova Scotia Liberal Party is asking a supreme court justice to review the chief electoral officer’s decision, since reversed, to investigate the party’s Preston campaign.

Dorothy Rice announced ahead of the Preston byelection in August that she was launching an investigation into the Liberals’ campaign materials regarding a potential dump in the riding.

Liberal candidate Carlo Simmons was campaigning against the proposed construction and demolition dump with signage indicating Premier Tim Houston’s Progressive Conservative government had done nothing to stop it. The PCs complained about the signs in late July.

“Chief Electoral Officer (CEO) Dorothy Rice issued an Order to the Nova Scotia Liberal Party on August 1, 2023,” Elections Nova Scotia said in an Aug. 3 statement.

“That Order required the Liberal Party and their candidate for the Preston electoral district by-election, Carlo Simmons, to, by 12 am August 3, 2023, remove all signs and cease distribution of any campaign materials which do not accurately reflect the facts involving a potential C&D processing facility in the Preston community.”

The Liberals refused.

“A decision has been made to initiate a formal investigation under Section 287 of the Elections Act and Elections Nova Scotia has reached out to engage the services of the Provincial RCMP to assist in this process,” Elections Nova Scotia said.

Investigation cancelled

PC candidate Twila Grosse won the election handily on Aug. 8, but the investigation into the Liberals apparently continued until last week.

On Friday, Sept. 8, Elections Nova Scotia issued another statement announcing the investigation was called off.

“Following further consideration of the original complaint, the CEO has decided to discontinue the investigation and has advised the RCMP of this decision,” Elections Nova Scotia said.

“The formal investigation under Section 287 of the Elections Act will not proceed, and no further action will be taken by ENS. As such, the CEO considers this matter concluded and will not comment further.”

Liberals file in court

Despite that statement, the Liberals filed notice for judicial review in Nova Scotia Supreme Court on Monday.

Party lawyer Mitchell Gallant noted the PCs filed their complaint under s. 307 of the Elections Act.

“Every person is guilty of an offence who, during an election, knowingly makes, distributes or publishes a false statement of fact about a candidate’s character or conduct for the purpose of influencing the election,” that section says.

“None of the campaign material mentioned a candidate, a candidate’s character or a candidate’s conduct,” Gallant wrote.

“The campaign materials related to the failure of the government to take steps to prevent a waste facility in Preston. For example, one campaign sign read: ‘Dump the Dump. Houston’s Conservatives have done nothing to stop this dump.’ Literature for households stated the Applicant’s candidate had written to the Minister requesting that a province-wide moratorium be placed on waste sites until the government could review and improve the public consultation process and that he had not received a reply.”

Party argues CEO had no authority for order

The CEO found the Liberals in breach of s. 307 and ordered the removal of the materials.

In a letter, the party replied “that it did not recognize any authority to order removal of the campaign materials, it did not agree the campaign materials constitute a ‘false statement of fact about a candidate’s character or conduct’ within the meaning of section 307 of the Elections Act and that any order to remove the campaign material would infringe its and the candidate’s rights to freedom of expression protected under the Charter of Rights and Freedoms.”

“The Nova Scotia Liberal Party explained that the location of waste management facilities is an important issue in Preston and accordingly, neither the Party nor the candidate would be removing the campaign material,” Gallant wrote.

The CEO advised the party she’d be launching an investigation and notifying the public.

Gallant wrote that the Liberals asked the CEO to reconsider “as there was no authority in the Elections Act to do so, it is not in the public interest to announce an RCMP investigation days before an election, and, since the Chief Electoral Officer had already determined the Party had breached section 307 of the Elections Act, there was nothing for the RCMP to investigate.”

“The Chief Electoral Officer did not respond,” Gallant wrote.

Decision was ‘unreasonable,’ says party

Gallant’s notice for judicial review acknowledged last week’s statement about the cancellation of the investigation. The party is seeking another opinion anyway.

The CEO’s decision was unreasonable, Gallant argued, because she “misinterpreted and misapplied” the Elections Act; “failed to conduct the proper or any analysis” on the party or candidate’s rights under the Charter; “did not provide a rational chain of analysis when read in conjunction with the record;” and more.

The Liberals are seeking an order quashing the CEO’s decision to initiate the investigation; quashing the finding that the party breached the Elections Act; declaring that the CEO doesn’t have the authority to order the removal of campaign materials; and declaring that the Elections Act should be “strictly construed so as to comply with the Charter.” It’s also seeking costs.

There’s a hearing set for Oct. 26 to set a date for the judicial review and receive direction from the justice.

Zane Woodford is the Halifax Examiner’s municipal reporter. He covers Halifax City Hall and contributes to our ongoing PRICED OUT housing series. Twitter @zwoodford

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